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Trusting Judges to Deliver Changes: Italy, the EU and Labour Law

Published online by Cambridge University Press:  27 October 2017


The title of this paper embraces three concepts which will be used as paths to reach a destination. The destination is Italy, taken as an example of an active promoter of European integration, even when facing difficulties in complying with its obligations under the EC Treaty.

The first path leads towards judicial intervention, seen as a major tool for making changes within a national legal system. Some examples (section III) concern the scrutiny that the ECJ operates, when prompted by the Commission, acting under Article 88(2) EC. Other examples (sections IV and V) are related to the open dialogue national judges engage in with the ECJ, when they start preliminary references under Article 234 EC.

Research Article
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2007

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1 First published in Stanford Law Review 1965 (18 Stanford LR 39) and 1966 (18 Stanford LR 396 and 583), the three essays on ‘The Italian Style’ were also translated into Italian and published in [1966] Rivista Trimestrale di Diritto e Procedura Civile 1169 (Lo’ stile italiano’: la dottrina ), [1967], 709 (Lo ‘stile italiano’: le fonti ), [1968], 373 (Lo ‘stile italiano’ l’interpretazione ). See also Cappelletti, M, Merryman, JH and Perillo, J The Italian Legal System: An Introduction (Stanford, Cal, Stanford University Press, 1967) and in par ticular chs 5, 6 and 7 Google Scholar. The same essays on Italy are now in Merryman, JH The Loneliness of the Comparative Lawyer (The Hague, Kluwer Law International, 1999) 173 Google Scholar. His sense of modesty in dealing with the Italian legal system is well expressed in The Loneliness at 11, where he wrote: ‘[i]n a way Italian law was a safe choice. If I had written about French or German law there would at least have been a community of interested and informed comparative lawyers at other US law schools, and a body of published work by which my scholarship could be judged’.

2 In the Foreword by Jacob, J to Cappelletti, M The Judicial Process in Comparative Perspective (Oxford, Clarendon Press, 1989)Google Scholar it is recalled that Cappelletti was the Visiting Goodhart Professor in Legal Science in Cambridge in the academic year 1988–1989. Comparative legal research for the understanding of legal changes brought about by European law is carried on in Cappelletti, M, Seccombe, M and Weiler, J Integration through Law. Europe and the American federal experience (Berlin, Walter de Gruyter, 1985)Google Scholar.

3 A short history of the Group and an illustration of the comparative methodology adopted is in Aaron, BThe Comparative Labor Law Group: a Personal Appraisal’ (1977) 2 Comparative Labor Law and Policy Journal 228 Google Scholar and id, ‘The Comparative Labour Law Group: A Brief History and a Personal Evaluation’ (2007) 28 Comparative Labour Law and Policy Journal 393.

4 Hepple, B The Making of Labour Law in Europe: a Comparative Study of Nine Countries up to 1945 (London, Mansell, 1986)Google Scholar.

5 Lord, Wedderburn I diritti del lavoro: saggi scelti sulla Gran Bretagna e l’Europa (Milan, Giuffrè, 1998)Google Scholar.

6 Padoa Schioppa, T Europa, forza gentile (Bologna, Il Mulino, 2001)Google Scholar.

7 Ibid, 6. After the Second World War, the main source of currency reserves was money sent from Italian workers who had emigrated abroad, as well as from funding provided for by the Marshall Plan. The Italian ‘founding fathers’ were fully aware of the poor state of the Italian economy and of the need to support the project of a European economic community.

8 The decisions adopted during the Italian presidency in 1985 and the diplomatic interest they created are also reported by Olivi, B L’Europa difficile: storia politica della Comunità europea (Bologna, Il Mulino, 1993) 279 Google Scholar.

9 Padoa Schioppa, T, above n 6, 118–19; Dastoli, PV and Vilella, G La nuova Europa (Bologna, Il Mulino, 1992)Google Scholar.

10 Spinelli, A and Rossi, E Il manifesto di Ventotene (Milan, Oscar Mondadori, 2006)Google Scholar. In his Introduction Padoa Schioppa underlines that the choice made by the publisher to include a classic in a widely circulated and accessible book series is in itself a demonstration of the strength of ideas, going beyond the debate promoted by the writers among their contemporaries.

11 Spinelli, A Come ho tentato di diventare saggio (Bologna, Il Mulino, 1999)Google Scholar. A book that particularly impressed Spinelli and that he translated was Robbins, L The Economic Causes of War (Le cause economiche della guerra, Torino Einaudi, 1944)Google Scholar. Books were sent by Luigi Einaudi and allowed into the place of exile only because E Rossi was a professor of economics and had been corresponding with Einaudi. See Levi, L ‘Altiero Spinelli, fondatore del movi mento per l’unità europea’ in Spinelli, A and Rossi, E, above n 10, 170–1.

12 Fabbrini, S (ed) L’europeizzazione dell’Italia (Rome–Bari, Laterza, 2003) 199 and 220 ffGoogle Scholar.

13 Ferrera, M and Gualmini, E Rescued by Europe: Labour and Social Policies Reforms from Maastricht to Berlusconi (Amsterdam, Amsterdam University Press, 2004)CrossRefGoogle Scholar.

14 Radaelli, CThe Italian State and the Euro: Institutions, Discourse, and Policy Regimes’ in Dyson, K (ed) European States and the Euro (Oxford, OUP, 2002) 212 ffCrossRefGoogle Scholar; Ferrera, M and Gualmini, E, above n 13, also value the contributions given by experts working in the Ministero del Tesoro and in the Bank of Italy.

15 Di Quirico, RI fondi strutturali fra centro e periferia’ in Fargion, V, Morlino, L and Profeti, S (eds) Europeizzazione e rappresentanza territoriale. Il caso italiano (Bologna, Il Mulino, 2006) 93 ffGoogle Scholar. This issue is also covered, with a reference to his personal experience as a Minister of Labour, by Treu, T Politiche del lavoro. Insegnamenti di un decennio (Bologna, Il Mulino, 2001) 86 ffGoogle Scholar.

16 Figures are reported by Börzel, TNon-compliance in the European Union. Pathology or Statistical Artefact?’ (2001) 8 JEPP 803 Google Scholar, who claims that there are no data proving a generalised level of non-compliance in the EU, although a few countries—Italy being the worst—hold a negative record (at 819).

17 Giuliani, M Le relazioni fra Italia e Unione Europea come questione di policy (2006) URGE Working Paper 11/2006, available at, 8–9. Giuliani reports that a ‘macroscopic phenomenon’ in failing to transpose is no longer visible, although inaccurate transposition still seems to characterise Italy’s compliance indicators. See also Giuliani, M La politica europea (Bologna, Il Mulino, 2006) 215 ffGoogle Scholar.

18 Corte Costituzionale 8 June 1984 no 170, [1984] I Foro Italiano 2062, annotated by Tizzano, A. An English translation of this leading case is in Oppenheimer, A (ed) The Relationship between European Community Law and National Law: The Cases (Cambridge, CUP 1994) 643 Google Scholar. A commentary on the case by Gaja, G is in (1984) 21 CML Rev 756 Google Scholar. See also the analysis developed by Cartabia, MRelationship between the Italian Legal System and the EU’ in Slaughter, AM, Stone Sweet, A and Weiler, JHH (eds) The European Court and National Courts—Doctrine and Jurisprudence (Oxford, Hart Publishing, 1998) 137 Google Scholar and La Pergola, A and Del Duca, PCommunity Law, International Law and the Italian Constitution’ (1985) 79 American Journal Of International Law 598 CrossRefGoogle Scholar.

19 Case C–106/77, Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629. On the dialogue between the ECJ and the Italian Constitutional Court see Tesauro, GCommunity Law and National Courts—an Italian Perspective’ in O’Keeffe, D and Bavasso, A (eds) Judicial Review in European Union Law. Liber Amicorum Lord Slynn of Hadley (The Hague, Kluwer Law International), i, 393 Google Scholar.

20 Corte Costituzionale 11 July 1989 no 389, [1999] I Foro Italiano 1076. This case was decided a few weeks after the ECJ’s ruling in Case 103/88, Fratelli Costanzo SpA v Comune di Milano [1989] ECR 1839 and drafted by a judge, A Baldassarre, professor of constitutional law. It is regarded as a most sophisticated analysis of the previously mentioned notions of ‘autonomy’ and ‘coordination’ of the national and European legal systems. Further to urging national judges as well as other branches of the state administration not to enforce legislation incompatible with European law, the Court stresses the point that Member States are also required to intervene in modifying or abrogating national laws, thus observing the principle of ‘legal certainty’ and furthering the primacy of European law.

21 See Judgment of Corte Costituzionale 10 Nov 1994 n 384. An English translation is in Oppenheimer, A (ed), The Relationship between European Community Law and National Law: the Cases (Cambridge, CUP, 2003), ii, 366 Google Scholar; Judgment of Corte Costituzionale 24 Apr 1996 n 126 (1996) 79 Rivista di Diritto Internazionale . 803. This latter judgment, too, was drafted by a professor of constitutional law, judge Zagrebelsky. The contribution of constitutional legal culture must be underlined as an original development of an Italian ‘style’ when approaching European law.

22 Constitutional law of 18 Oct 2001, no 3 modifying Art 117 of the Italian Constitution. Further clarifications were introduced by Law 5 June 2003 no 131. Art 8.2 deals with ‘substitutive powers’ that the government can exercise in cases of infringement of Community law perpetrated by the regions or other branches of the state administration. References to the 2001 constitutional reform are in Del Duca, L and Del Duca, PAn Italian Federalism?—The State, its Institutions and National Culture as Rule of Law Guarantor’ (2006) 54 American Journal of Comparative Law 810 Google Scholar.

23 Law of 4 Feb 2005, no 11. Giuliani, M, above n 17, is very critical of the 2005 law, judging on the first year of its implementation. The suggestion is to move to a parliamentary session every 6 months, in order to be ready to discuss the agenda of each Council’s presidency.

24 Adam, RIl diritto comunitario nell’ordinamento giuridico italiano’ in Tizzano, A (ed) Il diritto privato dell’Unione Europea (Turin, Giappichelli, 2006) 3 ffGoogle Scholar. and 88–91 on this last point; Contaldi, GLa disciplina della partecipazione italiana ai processi normativi comunitari alla luce della riforma della legge “La Pergola”’ (2005) 10 Diritto dell’Unione europea 515 Google Scholar.

25 Sciarra, SEmployment Policies and Labour Law. The Italian Response to the Open Method of Co-ordination’ in Holand, A and Hohmann-Dennhardt, C (eds) Arbeitnehmermitwirkung in einer sich globalisierenden Arbeitswelt, Liber Amicorum M Weiss (Berlin, BWV—Berliner Wissenschafts-Verlag, 2005) 319 Google Scholar.

26 Kilpatrick, CCommunity or Communities of Courts in European Integration’ (1998) 4 ELJ 121 CrossRefGoogle Scholar; Sciarra, SIntegration through Courts: Article 177 as a Pre-federal Device’ in Sciarra, S (ed) Labour Law in the Courts: National Judges and the European Court of Justice (Oxford, Hart Publishing, 2001)Google Scholar.

27 Case C–310/99, Italy v Commission [2002] ECR I–2289; Case C–99/02, Commission v Italy [2004] ECR I–3353. Relevant information is in Lo Faro, A Aiuti di stato e occupazione, available at Italy has also been recently condemned by the ECJ for granting state aid incompatible with the common market in cases related to banks (Case C–148/04, Unicredito Italiano [2005] ECR I–11137) and to foundations linked to banks (Case C–222/04, Cassa di Risparmio di Firenze and others [2006] ECR I–289).

28 Plender, RDefinition of Aid’ in Biondi, A, Eeckhout, P and Flynn, J (eds) The Law of State Aid in the European Union (Oxford, OUP, 2004) 6–7Google Scholar; Biondi, A and Rubini, LAims, Effects and Justifications: EC State Aid Law and its Impact on National Social Policies’ in Spaventa, E and Dougan, M (eds) Social Welfare and EU Law (Oxford, Hart Publishing, 2005) 79 Google Scholar.

29 A thorough analysis of the ECJ’s case law is in Biondi, A and Rubini, L, above n 28, 83–5.

30 Joined Cases C–52/97, Epifanio Viscido, C–53/97, Mauro Scandella and Others and C–54/97, Massimiliano Terragnolo and Others v Ente Poste Italiane [1998] ECR I–2629. A concurring reference with Viscido is in Corte Costituzionale 9 Oct 2000 no 419, [2001 I Foro Italiano 1087.

31 See the comments by Alaimo, ADeleghe alle tutele del lavoro e diritto comunitario della concorrenza’ (1999) 1 Diritto del Mercato del lavoro 126 and 138 in particularGoogle Scholar.

32 Joined Cases C–72 and 73/91, Sloman Neptun [1993] ECR I–887, annotated by Lewis, X in (1993) 22 Industrial Law Journal 235 CrossRefGoogle Scholar.

33 The current relevant source on training aids is Commission Regulation 68/2001/EC on the application of Arts 87 and 88 of the EC Treaty to training aid, OJ 2001 L 10/20, as amended by Commission Regulation. 363/2004/EC, OJ 2004 L 63/20; on aid for employment; reference is to Commission Regulation 2204/2002/EC on the application of Arts 87 and 88 of the EC Treaty to state aid for employment, OJ 2002 L 337/3. This more specialised approach was followed by the Commission when the number of state aid notifications grew tremendously in the early 2000s. In its State Aid Action Plan, COM(2005)107 final, of 7 June 2005, the Commission adopts the language of law and economics to link new state aid policies with the Lisbon strategy, favouring horizontal objectives such as research and innovation. Given the emphasis put on market failures as a pre-condition for the use of state aid, measures relating to employment may more frequently become the object of block exemptions and become less used.

34 As reported in Chalmers, D et al, European Union Law (Cambridge, CUP, 2006) 350 Google Scholar, quoting the Commission’s documents. In 2003 the Commission estimated that over 89% of cases were settled before being sent to the ECJ. Studies on the enforcement of state aid law at national level in 2006 show an increasing number of cases brought before national courts, thus proving a more widespread understanding at a decentralised level of state aid rules, although ‘obstacles in the national legal arena to effective enjoyment of the protection afforded by Art 88(3)’ remain, as indicated by Arnull, A et al, Wyatt and Dashwood’s European Union Law 5th edn (London, Sweet & Maxwell, 2006) 1190 Google Scholar.

35 As correctly stated by Biondi, A and Rubini, L above n 28, 80, n 3.

36 Law of 24 June 1997, no 196 Norme di promozione dell’occupazione.

37 Case C–310/99, Italy v Commission [2002] ECR I–2289, para 101.

38 Case C–99/02, Commission v Italy [2004] ECR I–3353, para 21. In Case C–207/05, Commission v Italy [2006] ECR I–70, para 42, the ECJ once more ruled that a Member State cannot plead as a defence the unlawfulness of a decision addressed to it, in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision.

39 Case C–99/02, above n 38, para 24.

40 Legislative Decree of 10 Sept 2003 no 276, arts 47–53, subsequently amended by Decree of 6 Oct 2004 no 251 and by Law of 14 May 2005 no 80.

41 The economic incentive is not to be considered state aid, because it applies uniformly to all categories of workers in question. Critical remarks on the 2003 Italian reform in Borrelli, SRiforma del mercato del lavoro e diritto europeo: normativa antidiscriminatoria e sugli aiuti di stato’ (2005) 27 Giornale di diritto del lavoro e di relazioni industriali 291 Google Scholar, in particular 312 ff. for references to contratti di inserimento.

42 See in this regard the innovations brought about by the 2001 constitutional reform, quoted at n 22.

43 Accordo interconfederale of 13 Nov 2003, followed by another nationwide agreement signed on 11 Feb 2004. The latter agreement specifies the working conditions and the normative consequences following the transformation of a fixed-term contract into a permanent one.

44 Decree of 6 Oct 2004 no 251, Art 13 amending the previous 2003 Decree, carries a specific and unequivocal reference to Commission Regulation 2204/2002 on employment aid, above n 33.

45 Corte Costituzionale 28 Jan 2005 no 50, [2006] I Foro Italiano 365., in particular paras 15–17 of the decision. Critical remarks are in Caruso, BOccupabilità, formazione e “capabil ity” nei modelli giuridici di regolazione del mercato del lavoro’ (2007) 29 Giornale di diritto del lavoro e di relazioni industriali 1 Google Scholar. The author underlines the peculiarities in the regulation of training contracts, with regard to the hierarchy of sources and the multiplicity of actors involved. See at 1 ff. and in particular 86–95.

46 Law of 14 May 2005 no 80. Regional laws adopted so far are analysed by Roccella, MLa disciplina dell’apprendistato professionalizzante nella legislazione regionale’ (2007) 21 Lavoro e diritto 175 Google Scholar.

47 Law of 27 Dec 2006 no 296, Art 1 paras 1213, 1214 and 1216. In recent years budget laws, to be approved within the calendar year, have tended to deal with the most diverse subject matters, thus becoming a broad container of norms to be applied in very different fields of law.

48 See above n 33.

49 Case C–180/04, Vassallo [2006] ECR I–7251 and Case C–53/04, Marrosu [2006] ECR I–7213.

50 OJ 1999 L 175/43 (hereafter referred to as the Fixed-term Work Directive).

51 Legislative Decree of 6 Sept 2001 no 368.

52 Art 1(1) of the above-mentioned Decree states: ‘an employment contract may be concluded for a fixed term for technical reasons or for reasons related to imperative requirements of production, organisation or replacement of workers’.

53 Zappalà, LFlexibility and fixed-term contracts in Italy’ in Caruso, B and Fuchs, M (eds) Flexibility in Employment and Labour Market Legislation in Europe: Comparing Italy and Germany (Baden-Baden and Milan, Nomos – Giuffrè, 2004)Google Scholar.

54 Tribunale di Rossano 17 May 2004, [2005] II Rivista giuridica del lavoro 85, note by Amos Andreoni.

55 Ordinanza of 28 June 2006 no 252.

56 Case C–144/04, Mangold v Helm [2005] ECR I–9981.

57 Cited above n 49.

58 Opinion of 20 Sept 2005, paras 36 ff.

59 The ruling of the Corte Costituzionale extensively referred to in the Opinion of the AG is 27 Mar 2003, no 89, [2003] I Foro Italiano 2258.

60 Case C–180/04, Vassallo [2006] ECR I–7251, para 36; Case C–53/04 Marrosu [2006] ECR I–7213, para 5, both referring to Case C–212/04, Adeneler and Others [2006] ECR I–6057.

61 Editorial Comments in (2006) 43 CML Rev 1, 7; Piccone, V and Sciarra, S ‘Principi fondamentali dell’ordinamento comunitario, obbligo di interpretazioe conforme, politiche occupazionali’ [2006] Foro Italiano 342.

62 The AG in his Opinion very firmly rejects the argument submitted by the Italian government in Vassallo, whereby the Framework Agreement would not be binding on public employers, since it was signed by organisations representing private employees and confirms that the text in question ‘has the normative character of a Directive adopted by the Council’: at para 26.

63 Above n 60.

64 Case C–255/97, Pfeiffer [1999] ECR I–2835.

65 Joined Cases C–6 and 9/90, Francovich and Others v Italy [1991] ECR I–5357.

66 Case C–212/o4, Adeneler, above n 60, paras 108–112.

67 See on this point Yannakourou, SThe Evolution of Labour Law in Greece 1992–2002’ in European Commission The Evolution of Labour Law (Luxembourg, OOOPEC, 2005), ii, 221 Google Scholar. The Report, precedent to the preliminary ruling in Adeneler and Others, discusses the frequent direct enforcement made by Greek judges of the Directive on fixed-term contracts.

68 Royal Decree 9 June 2006, incorporating the agreement signed by the government and the social partners on the main guidelines for reforming the labour market.

69 Valdés dal Ré, F and Lahera Forteza, JLa nuova riforma del mercato del lavoro in Spagna’ (2006) 28 Giornale di diritto del lavoro e di relazioni industriali 521 Google Scholar; no author, ‘Social partners agree on further labour market reform’ (2006) 389 (June) European Industrial Relations Review 24. In 1994 Spain had 33.9% of fixed-term contracts, reaching the highest percentage in the EU, including the enlargement countries.

70 Case 33/88, Pilar Allué and Carmel Mary Coonan v Universita Degli Studi di Venezia (Allué 1) [1989] ECR -1591. In Case 225/85, Commission v Italy [1987] ECR 2625 the Court did not accept that research posts at CNR, the national research centre, should be reserved to Italian nationals only, arguing on the facts that only ‘duties of management or of advising the state on scientific and technical questions could be described as employment in the public service within the meaning of Article 48(4)’, now 39(4). This quotation is at para. 9 of the Court’s judgment.

71 See the ruling of the Corte Costituzionale 23 Feb 1989 no 55, almost contemporary with Pilar Allué, arguing that there had been unequal treatment and granting the renewal of the contract beyond 5 years. There followed a controversial decision of the Corte di Cassazione 5 Apr 1991 no 3562, arguing that the one-year limit for the contracts in question was compatible with Art 39 EC. The ECJ ruled on a new preliminary procedure in Joined Cases C–259, 331 and 332/91, Pilar Allué and Carmel Mary Coonan and Others v Università degli studi di Venezia and Università degli studi di Parma [1993] ECR I–04309, then followed by Case C–212/99, Commission v Italy [2001] ECR I–4923.

72 The current source of regulation on fixed-term contracts of employment is the 2001 Decree, quoted at n 51.

73 Case C–119/04, Commission v Italy [2006] ECR I–6884.

74 Ibid, Opinion of the AG delivered on 26 Jan 2006, para 17.

75 Respectively, ibid, paras 18 and 35.

76 Ibid, paras 30-34 of the Court’s judgment, making reference to various decisions taken by individual universities and to Decree 2004/2 of 14 Jan 2004, providing the financial and legislative framework for the regulation of foreign language assistants’ employment contracts. A sector collective agreement covering university employees signed in 2003, Art 22 referred back to decentralised collective agreements for the adoption of the measures necessary to implement the 2001 ECJ’s ruling. Furthermore, Art 519 of the previously quoted budget law, above n 47, deals with financial measures necessary to transform some fixed-term contracts in the public sector into permanent ones. The discussion is still open on whether foreign language assistants should be covered by this law.

77 Merryman, JH The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 2nd edn (Stanford, Cal, Stanford University Press, 1985) 36 Google Scholar. A different approach, based on the institutional perspective in the comparative study of courts, is now developed in Bell, J Judiciaries within Europe: A Comparative review (Cambridge, CUP, 2006)Google Scholar.

78 Merryman, JH, above n 1, 11.

79 Ascarelli, TFormazione di un diritto comune del lavoro’, in Atti del I congresso interna zionale di diritto del lavoro (Trieste, Ed Universita di Trieste, 1952) 43 Google Scholar.

80 See the intervention by Simitis, S, in Sciarra, S, Simitis, S, Treu, T and Weiss, MSpiros Simitis giurista europeo’ (2006) 28 Giornale di diritto del lavoro e di relazioni industriali 301, 330Google Scholar.

81 Calvino, I Six Memos for the Next Millennium (Cambridge, Mass, Harvard University Press, 1988) 3 Google Scholar.

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